CACI 2401 Breach of Employment Contract—Unspecified Term—Actual or Constructive Discharge—Essential Factual Elements

California Civil Jury Instructions CACI

2401 Breach of Employment Contract—Unspecified Term—Actual or Constructive Discharge—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] breached their employment contract [by forcing [name of plaintiff] to resign]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] and [name of defendant] entered into an employment relationship. [An employment contract or a provision in an employment contract may be [written or oral/partly written and partly oral/created by the conduct of the parties]];

2.That [name of defendant] promised, by words or conduct, to discharge [name of plaintiff] [specify the nature of the alleged agreement, e.g., only for good cause];

3.That [name of plaintiff] substantially performed [his/her/nonbinary pronoun] job duties [unless [name of plaintiff]’s performance was excused [or prevented]];

4.That [name of defendant] [constructively] discharged [name of plaintiff] [e.g., without good cause];

5.That [name of plaintiff] was harmed; and

6.That [name of defendant]’s breach of contract was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

Element 3 on substantial performance should not be confused with the “good cause” defense: “The action is primarily for breach of contract. It was therefore incumbent upon plaintiff to prove that he was able and offered to fulfill all obligations imposed upon him by the contract. Plaintiff failed to meet this requirement; by voluntarily withdrawing from the contract he excused further performance by defendant.” (Kane v. Sklar (1954) 122 Cal.App.2d 480, 482 [265 P.2d 29], internal citation omitted.) Element 3 may be deleted if substantial performance is not a disputed issue.

An employee may be “constructively” discharged if the employer intentionally created or knowingly permitted working conditions to exist that were so intolerable that a reasonable person would have had no reasonable alternative except to resign. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 [32 Cal.Rptr.2d 223, 876 P.2d 1022].) If constructive rather than actual discharge is alleged, include “by forcing [name of plaintiff] to resign” in the introductory paragraph and “constructively” in element 4. Then also give CACI No. 2510, “Constructive Discharge” Explained.

Elements 2 and 4 may be modified for adverse employment actions other than discharge, for example demotion. The California Supreme Court has extended the implied contract theory to encompass adverse employment actions that violate the terms of an implied contract. (See Scott v. Pac. Gas & Elec. Co. (1995) 11 Cal.4th 454, 473-474 [46 Cal.Rptr.2d 427, 904 P.2d 834].) See CACI No. 2509, “Adverse Employment Action” Explained.

For an instruction on damages, give CACI No. 3903P, Damages From Employer for Wrongful Discharge (Economic Damage). See also CACI No. 304, Oral or Written Contract Terms, and CACI No. 305, Implied-in-Fact Contract.

Sources and Authority

At-Will Employment. Labor Code section 2922.

Contractual Conditions Precedent. Civil Code section 1439.

“Where there is no express agreement, the issue is whether other evidence of the parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of an actual mutual understanding on particular terms and conditions of employment. If such evidence logically permits conflicting inferences, a question of fact is presented. But where the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)

The employee bears the ultimate burden of proving that he or she was wrongfully terminated. (Pugh v. See’s Candies, Inc. (Pugh I) (1981) 116 Cal.App.3d 311, 330 [171 Cal.Rptr. 917].)

“The presumption that an employment relationship of indefinite duration is intended to be terminable at will is therefore ‘subject, like any presumption, to contrary evidence. This may take the form of an agreement, express or implied, that … the employment relationship will continue indefinitely, pending the occurrence of some event such as the employer’s dissatisfaction with the employee’s services or the existence of some “cause” for termination.’ ” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680 [254 Cal.Rptr. 211, 765 P.2d 373], internal citation omitted.)

“In Foley, we identified several factors, apart from express terms, that may bear upon ‘the existence and content of an … [implied-in-fact] agreement’ placing limits on the employer’s right to discharge an employee. These factors might include ‘ “the personnel policies or practices of the employer, the employee’s longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.” ’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 336–337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)

“Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing. Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 [32 Cal.Rptr.2d 223, 876 P.2d 1022], original italics, internal citation omitted.)

“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner, supra, 7 Cal.4th at pp. 1244–1245, internal citation omitted.)

“In order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts of [misconduct] are insufficient’ to support a constructive discharge claim. Moreover, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.” (Turner, supra, 7 Cal.4th at p. 1247, internal citation and fns. omitted.)

“Whether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact.” (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1056 [282 Cal.Rptr. 726].)

“In some circumstances, a single intolerable incident, such as a crime of violence against an employee by an employer, or an employer’s ultimatum that an employee commit a crime, may constitute a constructive discharge. Such misconduct potentially could be found ‘aggravated.’ ” (Turner, supra, 7 Cal.4th at p. 1247, fn. 3.)

“Each individual incident need not be sufficient standing alone to force a resignation; rather, the accumulation of discriminatory treatment over time can amount to intolerable working conditions.” (Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 801–802 [258 Cal.Rptr.3d 83].)

“[T]he standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248, internal citations omitted.)

“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. [¶] For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Turner, supra, 7 Cal.4th at p. 1251.)

“The length of time the plaintiff remained on the job may be one relevant factor in determining the intolerability of employment conditions from the standpoint of a reasonable person. Neither logic nor precedent suggests it should always be dispositive.” (Turner, supra, 7 Cal.4th at p. 1254, original italics.)

“ ‘Good cause’ or ‘just cause’ for termination connotes ‘ “a fair and honest cause or reason,” ’ regulated by the good faith of the employer. The term is relative. Whether good cause exists is dependent upon the particular circumstances of each case. In deciding whether good cause exists, there must be a balance between the employer’s interest in operating its business efficiently and profitably and the employee’s interest in continued employment. Care must be exercised so as not to interfere with the employer’s legitimate exercise of managerial discretion. While the scope of such discretion is substantial, it is not unrestricted. Good cause is not properly found where the asserted reasons for discharge are ‘trivial, capricious, unrelated to business needs or goals, or pretextual.’ Where there is a contract to terminate only for good cause, the employer has no right to terminate for an arbitrary or unreasonable decision.” (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 994 [6 Cal.Rptr.2d 184], internal citations omitted, abrogated on another ground in Guz, supra, 24 Cal.4th at p. 351.)

“The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737, 474 P.2d 689], internal citations omitted.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch.4-A, Employment Presumed At Will, ¶¶ 4:2, 4:8, 4:15 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation Ch.4-B, Agreements Limiting At-Will Termination, ¶¶ 4:65, 4:81, 4:105 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good Cause” for Termination, ¶¶ 4:270–4:273 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract Actions, §§ 8.4–8.20B
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, §§ 60.05, 60.07 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.10, 249.15, 249.43, 249.90, Ch. 250, Employment Law: Wage and Hour Disputes, § 250.66 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.10, 50.11 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, §§ 100.21, 100.22, 100.28, 100.29, 100.31 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:9–6:11 (Thomson Reuters)